State v. Manning

• Decision Date: 13 May 1902
• Citation: 68 S.W. 341,168 Mo. 418
• Court: Missouri Supreme Court
• Parties: STATE v. MANNING.

68 S.W. 341

168 Mo. 418

STATE v. MANNING.

Supreme Court of Missouri, Division No. 2.

May 13, 1902.

ASSAULT — FORMER JEOPARDY — INDICTMENT — SUFFICIENCY — TRIAL OF PLEA — PRACTICE.

1. An indictment averring that M., in and upon one J., did make an assault, "and the said J., with a certain deadly weapon, * * * did assault J.," etc., does not charge M. with such assault, and, as no valid judgment could be rendered under it against M., it cannot support a plea by M. of former jeopardy.

2. Defendant pleaded former jeopardy, setting out the previous indictment in full. The court instructed that the plea presented no defense. Defendant contended that the issue of former jeopardy should have been submitted to a separate jury. Held that, as the plea presented a question of law, which should have been decided by the court on demurrer, there was no error, the practice adopted resulting in a separate trial of the issue, which was all defendant was entitled to.

Appeal from criminal court, Jackson county; Jno. W. Wofford, Judge.

Joseph Manning was convicted of a felonious assault, and appeals. Affirmed.

W. F. Riggs, for appellant. Edward C. Crow, Atty. Gen., and Sam B. Jeffries, Asst. Atty. Gen., for the State.

GANTT, J.

At the January term, 1901, of the criminal court of Jackson county, the grand jury returned the following indictment: "In the Criminal Court of Jackson County, Missouri, at Kansas City, Mo., January Term, A. D. 1901. The grand jurors for the state of Missouri, in and for the body of the county of Jackson, upon their oath present that Joseph Manning, whose Christian name in full is unknown to these jurors, late of the county aforesaid, on the 15th day of September, 1900, at the county of Jackson, state of Missouri, in and upon one William L. James, feloniously, willfully, on purpose, and of his malice aforethought, did make an assault; and the said Joseph Manning, with a certain deadly weapon, to wit, a billiard ball, likely to produce death or great bodily harm, then and there feloniously, willfully, on purpose, and of his malice aforethought, did assault, beat, bruise, hit, strike, and wound the said William L. James, then and there giving to the said William L. James, in and upon the head, eye, and the body of him, the said William L. James, with the deadly weapon, to wit, the billiard ball aforesaid, one wound, with the felonious intent then and there him, the said William L. James, feloniously, willfully, on purpose, and of his malice aforethought to kill and murder, — against the peace and dignity of the state." To this indictment, upon his arraignment, defendant pleaded not guilty, and filed the following special plea in bar; "State of Missouri, County of Jackson — ss.: In the Criminal Court of Jackson County, Missouri, at Kansas City, January term, A. D. 1901. State of Missouri v. Joe Manning. Indictment No. 2,220. Felony. And the said Joe Manning, in his own proper person, comes into court here, and, having heard the said indictment No. 2,220 read, says that no further proceedings in the premises ought to be had or taken against him on the said indictment, and the state of Missouri ought not further to prosecute the said indictment No. 2,220 against him, because he says that heretofore, to wit, in the criminal court of Jackson county, Missouri, at Kansas City, Mo., September term, A. D. 1900, the grand jurors of the state of Missouri in and for the body of the county of Jackson presented an indictment in the said court against him, the said Joe Manning, which indictment was and is in the words and figures following, to wit: `Indictment. State of Missouri, County of Jackson — ss.: In the Criminal Court of Jackson County, Missouri, at Kansas City, Mo., September term, A. D. 1900. The grand jurors for the state of Missouri, in and for the body of the county of Jackson, upon their oath present that Joe Manning, whose Christian name in full is unknown to these jurors, late of the county aforesaid, on the 15th day of September, 1900, at the county of Jackson, state of Missouri, in and upon one William L. Jones, feloniously, willfully, on purpose, and of his malice aforethought, did make an assault; and the said William L. Jones with a certain deadly weapon, to wit, a pool ball, the same being an instrument likely to produce death or great bodily harm, then and there feloniously, willfully, on purpose, and of his malice aforethought, did assault, beat, and wound the said William L. Jones, in and upon the head and eye of him, the said William L. Jones, then and there giving the said William L. Jones, with the deadly weapon, to wit, the pool ball aforesaid, one wound, with the felonious intent then and there him, the said William L. Jones, feloniously, willfully, on purpose, and of his malice aforethought, to kill and murder; against the peace and dignity of the state,' — which indictment is indorsed on the reverse side thereof as follows, to wit: `No. 2,123. Indictment. State of Missouri against Joe Manning, Charged with Assault with Intent to Kill. Filed ____ day of ____, 1900. W. A. McClanahan, Dep. Clerk. A True Bill. B. F. Jones, Foreman. Witnesses: W. L. Jones, Frank Brown, Dr. Manahan, J. C. Hayden.' That afterwards he, the said Joe Manning, on the ____ day of ____, 1900, in the criminal court of Jackson county, Missouri, at Kansas City, Missouri, was duly arraigned in open court, and, after hearing the said indictment 2,123 read, pleaded thereto not guilty, and the said issue so joined on said indictment was by the court set for trial on the 8th day of January, A. D. 1901. That upon the 8th day of January, 1901, in the said criminal court at Kansas City, Missouri, came the prosecuting attorney of said county, also came the defendant Joe Manning in said indictment No. 2,123, and parties announced ready for trial, and to try the issue came a jury of good and lawful men of the body of the county of Jackson, who were then and there duly impaneled and sworn to well and truly try the issue joined on said indictment No. 2,123, and a true verdict render according to the law and the evidence. And the state of Missouri, to maintain and prove the said issue on its part, opened the case, read the indictment to the jury, called five witnesses, who were duly sworn as witnesses on the part of the state, and called to the witness chair one Frank Brown, a witness, who was duly sworn as a witness in the case on the part of the state, and who, being interrogated by the prosecuting attorney, testified on the trial of said case, and upon objection by counsel for defendant the court entered the following judgment in the case, as appears of record therein, to wit: `It is therefore considered and adjudged by the court that the defendant be discharged hereof and go hence without day.' And the said jury, without the consent of the defendant, were then and there discharged and separated, without having rendered any verdict, and the said jury, without disagreeing or being found wanting with respect to their duty to be performed, or failure in any manner on their part, and without special cause, but solely by mere irregularity, and without the consent of the defendant, the jury separated. That the failure of said jury to render a verdict in the said cause arose solely from the reason that they were not permitted to render a verdict therein, and were not allowed to pass upon the guilt or innocence of defendant to the charge contained in said indictment. And the said Joe Manning avers that the Joe Manning who was the defendant in the indictment recited in this plea, No. 2,123, and the said Joe Manning defendant in indictment No. 2,220, here, are one and the same person, and not other and different persons; and the person William L. Jones named in indictment No. 2,123 and the William L. James named in indictment No. 2,220 are one and the same person, and not other and different persons; and that the assault mentioned and referred to in indictment No. 2,123 and the assault mentioned and referred to in indictment No. 2,220 are one and the same offense and transaction, and not other and different offenses and transactions, and the same facts investigated by the grand jury who found indictment No. 2,123 are the same facts investigated by the grand jury who found indictment No. 2,220, and not other and different transactions and facts, — all of which the said Joe Manning is ready and willing to verify. And the said Joe Manning says he has been once in jeopardy and placed upon trial for the offense alleged in indictment No. 2,220, and for same identical offense mentioned in indictment No. 2,220, and cannot by the law of the land be again put in jeopardy and upon trial for the same alleged offense; wherefore he prays judgment, and that by the court here he may be dismissed and discharged from the present indictment. As to the felony of which he, the said Joe Manning, stands here...